War is no place for libel law

A federal court slaps down a novel claim from a Sudanese business bombed by the U.S. in 1998.

BY DAVID B. RIVKIN JR. AND BRUCE D. BROWN

America’s war on terror is being fought on some unlikely fronts. This month, the D.C. Circuit Court of Appeals, in a first-of-its-kind ruling, threw out a libel claim brought by El-Shifa pharmaceutical plant, the Sudanese factory bombed by the Clinton administration in 1998 in response to al Qaeda attacks on the American Embassies in Kenya and Tanzania. The U.S. claimed that the plant was connected to Osama bin Laden and involved in chemical weapons production.

Insisting they are medicine makers and not terrorists, the plant owners initially sued the U.S. government for millions of dollars in damages for destroyed property. With these claims rejected, they advanced a novel legal theory—alleging that U.S. military action, predicated upon the government’s portrayal of them as terrorist supporters, ruined their reputation. Aware that money damages are not available against the federal government for defamation, the plaintiffs asked the courts to declare the statements about them false and force a retraction from the U.S. government.

In the post-9/11 era—where lawfare has become an integral part of warfare—El-Shifa’s defamation suit ought to be taken seriously. The plaintiffs sought to pull the judiciary even more deeply into reviewing government decisions about the use of force that lie at the very core of the president’s constitutional authority.

Sitting as a full court, the D.C. Circuit properly ruled that the case presented a non-justiciable “political question.” Under this venerable doctrine, the courts have no authority to review discretionary policy choices assigned by the Constitution to the government’s political branches. Determining whether the Clinton administration’s statements about the Sudanese factory were true is such an issue, the court ruled, because it would require judges to assess the wisdom of military action, a responsibility vested exclusively with the president. Though the plaintiffs argued that a libel judgment could not impair the president’s national security-related powers, the judges understood that, were they to rule in El-Shifa’s favor, they would violate the separation of powers by contradicting the president’s justification for the attack.

The court could have stopped here. However, recognizing that future libel suits against the federal government might not present “political questions,” a block of concurring judges suggested another compelling way to reject El-Shifa’s suit and other cases like it. The federal government is immune from most tort liability, including defamation, ensuring that individuals cannot sue the government for damages based on alleged libel. Nor can government officials be sued personally for statements made on the job, preventing fear of large judgments from deterring officials from speaking freely about controversial subjects. The concurring judges concluded that because Congress has not authorized defamation lawsuits against the government, El-Shifa owners could not obtain any kind of relief.

The El-Shifa case posed a provocative question: Whether, when damages are off the table, a claim seeking only to correct the record should be permitted in the future. The answer is emphatically no. Turning the courts into mini “truth commissions” would both force the judiciary into conflict with its co-equal branches and hurt free speech.

American libel law, which operates in the context of constitutional protection for free speech that is unique even among the world’s democracies, is built around the sound premise that only those plaintiffs who can prove all the elements of a defamation claim should be compensated. Falsity is but one of those required elements. We have never had a tradition of skipping the other necessary elements of the claim—with the extent of “actual malice” of defendants being the key—even if plaintiffs are only chasing a retraction.

The rules of evidence are designed to produce fairness in court, not “truth” in any abstract sense. In libel cases, particularly where national security is at issue, significant amounts of testimony will not be available because of privileges and claims of state secrets. The El-Shifa suit should be the first and last of its kind. War is no place for libel law.

Messrs. Rivkin and Brown are partners in the Washington, D.C., office of Baker Hostetler. Mr. Rivkin served in the Justice Department under Presidents Reagan and George H.W. Bush.